To maintain momentum ›› StayCurrent. September 2004 The Impact of the New Form 8-K Rules in the Context of Mergers and Acquisitions Transactions By Carl R. Sanchez and Deyan P. Spiridonov On August 23, 2004, the new rules relating to Form 8-K disclosures (the “New Rules”) became effective, shortening the time period for required disclosures and requiring disclosure of certain transactions that under the prior rules would not be required to be disclosed on Form 8-K. The New Rules are intended to benefit the securities markets by requiring companies to report significant corporate events without undue delay, thereby providing investors with better and more timely disclosure. The New Rules have a number of significant impacts on the reportability and disclosure of mergers and acquisitions transactions. While a few of the existing reporting thresholds and requirements remain intact, the New Rules effect a different numbering scheme and are applicable to certain matters encountered in a typical merger and acquisition transaction that may have not be reportable under the previous rules. This Alert provides a handy outline of the applicability of the New Rules to mergers and acquisitions transactions. As this Alert is designed as a quick reference resource, please be sure to consult the official text of the New Rules for definitive guidance. A. Effective Date. The effective date of the New Rules under Form 8-K was August 23, 2004 (the “Effective Date”). Practice Point: Any amendments made after the Effective Date to Form 8-K’s that were filed prior to the Effective Date will need to comply with the New Rules (both substantively and procedurally). B. Shortened Form 8-K Filing Deadline. Under the New Rules, issuers are required to file current reports on Form 8-K within four business days of a triggering event. Practice Point: If an agreement is entered into (the triggering event) on Wednesday, then the Item 1.01 Form 8-K (discussed below) would be required to be filed no later than the next Tuesday. If the triggering event occurs on a Saturday, Sunday or holiday on which the SEC is not open, then the four business day period begins to run on, and includes, the first business day thereafter. C. Amendment of Form 8-K. The actual form of the report will be amended to include boxes on the cover page that registrant may check to indicate that the Form 8-K filing also satisfies the registrant’s separate filing obligation under Rule 165 (requiring filing under Rule 425), Rule 14d2(b) and/or Rule 14a-12. Practice Point: Typically, in a public company M&A transaction, the press release announcing an M&A transaction will be filed under Rule 425 or Rule 14a-12 on the date of announcement. In addition, once the Form 8-K is filed, the Form 8-K itself would be filed pursuant to Rule 425 or Rule 14a-12, as applicable. Under the New Rules, the additional filing of the Form 8-K under Rule 425 or Rule 14a-12 is no longer necessary, so long as registrant checks the box on the cover of the new Form 8-K. D. Organization of New Rules; Sections Applicable to M&A Transactions. The new Form 8-K filing requirements are organized into 9 topical categories with a new numbering system. Those sections which are most relevant to M&A transactions are Items 1.01, 1.02, 2.01, 3.02 and 5.01. Each of these sections are discussed below. 1. Item 1.01 Entry into a Material Definitive Agreement a. Disclosure. Item 1.01 requires the disclosure of “material definitive agreements” (as well as any amendments thereto) entered into by the registrant not “in the ordinary course of business”: (i) For purposes of Item 1.01: (1) “material definitive agreement” means an agreement that provides for obligations or rights that are material to and enforceable against or by the registrant; and (2) a material definitive agreement will not be deemed to have been entered into “in the ordinary course of business” if it involves the subject matters identified in Items 601(b)(10)(ii)(A)-(D) of Regulation S-K. Practice Point: The New Rules specifically exclude non-binding term sheets and letters of intent from the filing requirements under Item 1.01. Practice Point: Material compensatory arrangements with management (director or named executive officer) of the registrant entered into in connection with an M&A transaction must be disclosed under the New Rules on Form 8-K (i.e., registrants can no longer delay disclosure of the material terms of employment agreements, severance agreements or modifications to severance plans until the filing of the registrant’s proxy statement or S-4 related to the M&A transaction). Please note that this may be a departure from the prior practice of some registrants and will likely require careful monitoring during the course of an M&A transaction. (ii) Required disclosure includes: (1) date on which agreement or amendment was entered into; (2) identity of parties to agreement or amendment; (3) brief description of any material relationship between any of the parties and the registrant or its affiliates; and (4) a brief description of the terms and conditions of the agreement or amendment that are material to the registrant. b. Exhibits. A copy of the actual material definitive agreement does not have to be filed with the Form 8-K when filed under Item 1.01. Copies of the material definitive agreement may be filed with the registrant’s next Form 10-Q or Form 10-K, as relevant. Practice Point: In the event the transaction is completed prior to the deadline for filing the registrant’s next Form 10-Q or Form 10-K, as appropriate, the material definitive agreement will nevertheless need to be filed as an Exhibit to the Item 2.01 Form 8K that must be filed within 4 business days of the completion of the applicable transaction. 02 2. Item 1.02 Termination of a Material Definitive Agreement a. Disclosure. Item 1.02 requires disclosure of any termination of a material definitive agreement. (i) Required disclosure includes: (1) date of termination of the material definitive agreement; (2) description of any material relationship between the registrant or its affiliates and any of the parties (3) description of material terms and conditions of the agreement; (4) description of the material circumstances surrounding the termination; and (5) material early termination penalties payable by registrant. (ii) No disclosure is required solely as the result of discussions regarding termination of the agreement or if the registrant believes in good faith that the material definitive agreement has been terminated improperly. Practice Point: If there is disagreement among the parties as to whether the material definitive agreement has been terminated, then registrant may consider whether filing an Item 8.01 (Other Events) Form 8-K is prudent in light of the circumstances surrounding the dispute and the probability of registrant prevailing on its argument. 3. Item 2.01 Completion of Acquisition or Disposition of Assets a. Disclosure. Disclosure requirements under New Item 2.01 of the New Rules are substantially similar to those under Item 2 of the previous rules under Form 8-K. (i) Required disclosure includes: (1) date of completion of the transaction; (2) brief description of the assets involved; (3) the identity of the seller and buyer of the assets and any material relationships between such persons and their respective affiliates (4) the nature and amount of consideration given or received for the assets; and (5) and, if the transaction being reported is an acquisition, the source of funds used to effect the acquisition if there is any material relationship between the buyer and seller. b. Exhibits. Item 2.01 requires compliance with Item 9.01 with respect to the filing of: (v) if securities are warrants or options representing equity securities, disclose the terms of the conversion or exercise of the securities. (i) financial statements of businesses acquired; 5. Item 5.01 Changes in Control of Registrants (ii) pro forma financial information; and (iii) copies of the plans of acquisition or disposition as exhibits to the Form 8-K 4. Item 3.02 Unregistered Sales of Equity Securities a. Application of Item 3.02. Registrant will need to file an Item 3.02 Form 8-K in the context of an M&A transaction if (i) the shares being issued by the registrant in the transaction are not registered under the Securities Act of 1933, and, (ii) the equity securities sold, in the aggregate since its last report filed under Item 3.02 or its last periodic report, whichever is more recent, constitute 1% or more than (5% or more for small business issuers) the total number of shares outstanding of the class of equity securities sold. Practice Point: Otherwise immaterial transactions (transactions that do not need to be reported under Item 1.01 or Item 2.01) may need to be reported under Item 3.02. For example, a small, immaterial stock-for-stock acquisition of a private company being made by a public company pursuant to Regulation D or a fairness hearing under Section 3(a)(10) of the Securities Act of 1933 may be required to be disclosed under Item 3.02. Practice Point: The filing requirement is triggered when registrant enters into the definitive agreement to sell the securities (which would not necessarily be when the securities are actually sold in the case of a transaction structured as a signing and subsequent closing). b. Disclosure. The disclosures required under Item 3.02 include: (i) the date of sale and title and amount of securities sold; (ii) if securities are sold for cash, the aggregate offering price; StayCurrent is published solely for the interests of friends and clients of Paul, Hastings, Janofsky & Walker LLP and should in no way be relied upon or construed as legal advice. For specific information on recent developments or particular factual situations, the opinion of legal counsel should be sought. Paul Hastings is a limited liability partnership. www.paulhastings.com 03 (iii) if securities are sold for property other than cash (e.g., securities of another company, assets, etc.), the nature of the transaction and the nature and aggregate amount of consideration received by registrant; (iv) the exemption from registration relied upon and briefly state the facts relied upon in claiming the exemption; and a. Application of Item 5.01. Registrant will need to file an Item 5.01 Form 8-K if a change in control of the registrant has occurred. Practice Point: In an M&A context, control-share acquisition transactions and completion of the first step (e.g., consummation of the tender) of two-step tender offers will likely trigger the filing requirement under Item 5.01. b. Disclosure. The disclosure required under Item 5.01 includes: (i) identity of person acquiring such control; (ii) date and description of the transaction which resulted in the change in control; (iii) basis of control, including percentage of voting securities of the registrant now beneficially owned by the persons who acquired control; (iv) amount of consideration used by persons acquiring control; (v) source of funds used by the persons acquiring control; (vi) the identity of the persons from whom control was assumed; (vii) any arrangements or understandings among the members of both the former and new control groups and their associates with respect to the election of directors or other matters; and (viii) the information required by Item 403(c) of Regulation S-K. *** While the New Rules require registrants to disclose more transactions and on a quicker time frame than the previous rules, careful monitoring of each step of an M&A transaction should ensure that registrants have adequate time to properly comply. If you have any questions regarding the New Rules in the context of M&A transactions, please call Carl R. Sanchez, at (858) 720-2810, or Deyan P. Spiridonov, at (858) 720-2590.
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